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Taft's Environmental Practice provides nationally recognized services in the areas of trial practice, Superfund defense and negotiation, enforcement defense, cost-recovery for plaintiffs and defendants, criminal environmental defense, environmental insurance and toxic tort litigation, mold and sick building litigation, lawsuits involving environmental problems discovered as a result of real property transfers or mergers and acquisitions, Brownfields redevelopment, defense of claims of occupational exposures, and administrative proceedings before state and federal agencies. Taft's environmental lawyers also regularly are engaged in insurance disputes concerning environmental issues and agricultural issues involving CAFOs and CFOs. As a Taft client, you can utilize the capital of 31 intensely motivated and focused attorneys in all facets of environmental law.
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Selenium Effluent Limit Enforcement Presents Novel Issues for Court
A West Virginia District Court judge dispelled the contention of some that federal courts are not up to the task of resolving complex technical environmental matters. In Ohio Valley Environmental Coalition, Inc. v. Apogee Coal Company, LLC, the defendant Apogee Coal asked the Court to modify a 2009 Consent Decree it had entered with citizen suit plaintiffs to settle alleged West Virginia NPDES selenium permit exceedances.
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| Indiana Coal Mines Beware: IDEM Begins NDPES General Permit Revisions
Indiana coal mines have until November 26, 2010 to submit comments to IDEM's recently revised Development of New Rules and Amendments to Rules Concerning NPDES General Permits. (LSA Doc. #10-659.) The new rules and amendments seem innocuous at first blush; they claim to bring IDEM's procedures for issuing NPDES general permits by rule into compliance with federal law by transferring the authority to write general permits from the Water Pollution Control Board to the Commissioner, by adding expiration dates to general permits, and by adding public review procedures (not yet defined) to the existing NPDES permitting process. But, companies engaged in coal mining, processing, and reclamation activities need only be reminded of the Petition for Corrective Action filed last year to appreciate the seriousness of this rule making.
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| New PSD Rules for Fine Particulate Matter
On October 20, 2010, U.S. EPA published final rules for controlling air emissions of particulates less then 2.5 microns in diameter (PM 2.5) in areas that meet federal air quality standards. The new rules will be implemented through the Prevention of Significant Deterioration (PSD) new source review program. Any source of PM emissions proposing to locate or expand in an attainment area within the next 12 months, or soon thereafter, should determine the potential impact of the new PM 2.5 rules right away.
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A Tale of Two Courts and Ambiguity in the Polllution Exclusion
In a related pair of decisions, two courts, presented with precisely identical facts, issue wholly contrary rulings.
In Mountain States Mutual Casualty Company v. Kilpatrick d/b/a Hog's Breath Saloon & Restaurant, No. 06-CV-00221-WDM-OES, 2007 WL 2506640 (D. Colo. Aug. 30, 2007), Mountain States Mutual Casualty Company ("Mountain States") issued a commercial general liability insurance policy (the "CGL Policy") to Tim Kilpatrick d/b/a Hog's Breath Saloon & Restaurant ("Hog's Breath"). Hog's Breath employees routinely emptied greasy water into the sewer drain outside the bar which congealed in the city's sewer system. Standing over a manhole while cleaning the sewer line near Hog's Breath, a city employee smelled hydrogen sulfide, which forms naturally from the breakdown of organic material. When a clog in the sewer line broke free, the concentration of hydrogen sulfide increased dramatically rendering the employee unconscious and causing him to fall into the manhole. A second employee entered the manhole and was similarly rendered unconscious. The employees sued Hog's Breath, alleging they incurred injuries, damages, and losses due to Hog's Breath's negligence in dumping cooking oil and grease into the sewer line.
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| EPA Extends SPCC Compliance Deadline for Some, But Not for All
The U.S. Environmental Protection Agency (EPA) recently extended the date by which certain regulated facilities must comply with amendments to the Spill Prevention Control and Countermeasure (SPCC) rule to November 10, 2011. The following facilities qualify for the extension: "onshore oil production, farms, electric utility plants, petroleum refining and related industries, chemical manufacturing, food manufacturing, manufacturing facilities using and storing animal fats and vegetable oils, metal and other manufacturing, real estate rental and leasing, retail trade, contract construction, wholesale trade, other commercial, transportation, arts entertainment & recreation, other services (except public administration), petroleum bulk stations and terminals, education, hospitals & other health care, accommodation and food services, fuel oil dealers, gasoline stations, information finance and insurance, mining, warehousing and storage, religious organizations, military installations, and government facilities." Eligible facilities that began operations prior to August 16, 2002 are still required to have a SPCC plan in place; the extension only delays the date by which SPCC plans must conform to the amended SPCC rule. Eligible facilities that began operations after August 16, 2002, however, have until November 10, 2011 to develop and implement a SPCC plan.
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CERCLA 104(E) Request for Information Letter Triggers Insurer's Duty to Defend
The U.S. District Court for the District of Oregon has held that an EPA letter requesting information under Section 104(e) of CERCLA was a "suit" under an insured's Comprehensive General Liability (CGL) insurance policies which triggered the insurers' duty to defend.
In Ash Grove Cement Co. v. Liberty Mutual Ins. Co., et l., 2010 U.S. Dist. Lexis 103763 (D. Or. Sept. 30, 2010), the insured Ash Grove owned and operated plants within the Portland Harbor Superfund Site. Although the site was on the National Priorities List since 2000, EPA did not send a 104(e) request to Ash Grove until several years later, seeking a great deal of information about the site. Like all 104(e) requests, EPA's letter stated Ash Grove had a legal obligation to provide the information requested and could be fined up to $32,000 per day if it did not comply. The letter did not name Ash Grove a potentially responsible party ("PRP") at the Superfund site.
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Let It Go: FASB to Reassess and Postpones Proposed Changes for Disclosure of Pending and Threatened Litigation
Sometimes you have to step back from revisions to realize that your initial work was pretty good and your editing spawns more problems than solutions. On October 27, 2010, the Financial Accounting Standards Board stepped back and decided to reassess and postpone the effective date for its proposed Accounting Standards Update, Contingencies (Topic 450); Disclosure of Certain Loss Contingencies (ASC 450-20).
The Board's intent in drafting the proposed amendments was good-hearted. It sought to modify accounting standards related to disclosure of pending and threatened litigation to provide transparent, comprehensive, and useful information to investors who read and rely on financial statements. But, the final product is impracticable and flawed.
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November 2010 Issue
· Selenium Effluent Limit Enforcement
· NDPES General Permit Revisions · New PSD Rules for Fine Particulate Matter · A Tale of Two Courts and Ambiguity in the Pollution Exclusion · EPA Extends SPCC Compliance Deadline for Some, But Not for All
· CERCLA 104IE) Request for Information Letter · FASB to Reassess and Postpones Changes for Litigation Disclosure |
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